The Supreme Court has a lot to worry about these days, like a year plus of finding out first hand what can happen (or not happen) to your ability to make precedent when you have a 4-4 deadlock on the Court. So its recent decision to deny review in the case of Bell v. Itawamba County School Board probably didn’t register much of a blip on the Supremes’ radar. But for school leaders and EdTech legal nerds like myself, the Court’s decision is a big deal and raises the important question: How do school leaders approach discipline of students’ off-campus, online misconduct in light of the Court’s denial of the petition for review?

The case revolves around Mississippi high school student Taylor Bell, who raps under the name T-Bizzle. I wrote about the case back in 2015, explaining the facts as such:

In Bell v. Itawamba County School Board, the Fifth Circuit, which has jurisdiction over Louisiana, Mississippi, and Texas, addressed a rap song posted by a Mississippi high school senior, Taylor Bell, on his publicly accessible Facebook page and YouTube. The bulk of the song criticized two coaches at the school, who were named in the song, for allegedly engaging in improper sexual relations with female students. The song also included four references to violent acts that would be carried out against the coaches, however, presumably by Bell.

As numerous other courts across the country have done, the Fifth Circuit applied the Supreme Court’s 1969 case of Tinker v. Des Moines Independent Community School District, to the case. Tinker dealt with on-campus speech in the form of wearing black armbands to protest the Vietnam war. Tinker says that if a student’s conduct causes or could reasonably be foreseen to cause a substantial disruption to the school environment or invade the rights of others, it can be subject to discipline without violating the First Amendment’s protections of free speech. Since Tinker really dealt with on-campus speech, most courts to apply this standard to off-campus, online misconduct have also worked in a “nexus” standard to their test as well, requiring that the speech have a sufficient connection to school to justify discipline. The Fifth Circuit applied these standards and found that Bell’s song violated school policies against threats, harassment, and intimidation; was intentionally directed at the school community; and created a reasonable risk of a substantial disruption. The Fifth Circuit thus upheld the school’s decision to suspend Bell under Tinker.

The problem is that although there were some threatening elements to Bell’s lyrics, his rap song included what some describe as true political commentary. Hey, even some high-profile rappers (T.I., Killer Mike, and this Southern girl’s favorite, Big Boi from Outkast) wrote to the Court explaining why they believe Bell’s song should be protected by the First Amendment. The song also was not intentionally injected into the school community by Bell–it was merely about school. These facts led many to argue that the Supreme Court should use the case as an opportunity to address the apparent confusion among lower courts on the issue of when, how, and under what circumstances schools can discipline students for off-campus internet speech. This is how Slate describes the concern:

Federal and state courts across the country are totally, hopelessly fractured on the question of First Amendment protection for students’ online speech. Some federal appeals courts and state supreme courts protect it vigorously. Others barely protect it at all. Everybody seemed to agree a decade ago that the Supreme Court needed to weigh in. It still hasn’t, and so the 5th Circuit wandered its way into a terrible decision without contravening any precedent.

Despite these concerns, the Supreme Court declined the opportunity to weigh in on the case.

Now, I don’t really agree with those who cry that the sky is falling and that school leaders are hopelessly lost without a Supreme Court decision on these issues. Sure, some courts have taken a narrower view of discipline rights than the Fifth Circuit, and schools in those jurisdictions should of course respect and follow those precedents. But in the vast majority of jurisdictions, the highest appellate court has either applied the Tinker standard to off-campus, online speech or has been silent on the question (in Illinois, we don’t even have a lower court decision addressing the issue at all). In those jurisdictions, it’s still safe for school leaders to assume that if a student’s off-campus, online misconduct violates a school rule, has a sufficient nexus (or connection) to the school environment, and causes or reasonably could be foreseen to cause a material and substantial disruption to the school environment, the student can be disciplined. I realize that’s not a bulletproof tactic, particularly if the speech is not overtly threatening or could be described as valid political or social commentary. Indeed, free speech advocates who wrote briefs in support of Bell in the case argued that Tinker should not even apply to off-campus, online speech. But for now, as the Fifth Circuit explained in its decision in Bell, without a Supreme Court decision on point schools must continue to apply the law as the lower courts are developing it, as fractured as that may be. And that means that even a rap song like T-Bizzle’s, which I agree did include some commentary that could be described as political, is still fair game for discipline, especially if it contains threatening content aimed toward members of the school community.

A recent lawsuit out of Ohio brings a local flair to what has otherwise become a relatively common story. We’ve all heard of teachers being disciplined or dismissed for posting something thoughtless online that led to community uproar. But did you ever think it would happen with a post about … milk?

My Twitter followers may have seen my retweet of the NSBA Legal Clips storyabout this case last week. The lawsuit, which was filed by the ACLU in Ohio, involves a former teacher, Keith Allison, who alleges he was fired by Green Local School District (GLSD) because of a message he posted on Facebook on his own time and off of school grounds. The post was made in the Summer of 2014, and urged readers to choose plant-based milk over cow’s milk. The post showed a picture of a young calf in a small crate and said:

The cruelty of separation, loneliness, and infant slaughter lingers inside each glass of cow’s milk. Your voice can help change the system. You don’t have to support this. Plant-based milks are everywhere and are delicious.

Turns out that the community GLSD serves is heavily populated with dairy farmers. Allison’s post even said “This place is five miles from my house.” Allison’s supervisor allegedly called him in after the school year began and said that teachers like himself needed to take care not to offend the agricultural community. His pay was cut, and then at the end of the year his contract was not renewed. Although he was later hired for a different position, Allison says the new position was not as good as the old, and that he feels now he must censor his speech to avoid further retaliation by GLSD.

Those who read the blog know that a public school district that disciplines or terminates an employee for off-campus, online speech has to contend with the First Amendment. Teachers and other school employees do not shed their free speech rights simply by being hired by a public school. To survive a First Amendment challenge, a school district will need to show one of the following three things: (more…)

As our firm reported earlier this year, the Supreme Court recently held that sectarian invocations at public meetings do not automatically violate the First Amendment of the U.S. Constitution, which separates church and state. Advocates for schools have opined about the potential impact the case, Town of Greece v. Galloway, may have in the context of school board meetings. For instance, Education Week’s summary of the case stated:

[E]ducation law experts [have] much to chew about over whether the court would treat school board meetings the same as town councils and other municipal meetings. Some federal appeals courts that have addressed meeting prayers at school board meetings have distinguished that situation … by suggesting board meetings were more like school itself, with frequent presence of schoolchildren in a coercive environment.

A recent complaint filed by the Freedom from Religion Foundation against a school district in California promises to test how the Greece holding will be applied in the school context. The complaint in Freedom from Religion Foundation v. Chino Valley Unified School District Board of Education cites to Third and Sixth Circuit appellate court cases that found constitutional violations where prayer was included in school board meetings.

Although it remains to be seen how the California court or any other court will decide the issue after Greece, the lawsuit highlights the significant risk associated with injecting religion into public board meetings, even after the recent Supreme Court ruling. This is especially true where, as in the California case, students are required to be present at school board meetings in any context. Until the issue is decided by a court in this jurisdiction, school boards should continue to consult with counsel before making religious invocations at meetings.

As reportedin the New York Times, the Second Circuit Court of Appeals recently held that a school district could prohibit outside community groups from using school facilities for “religious services” without violating the Free Exercise clause of the First Amendment to the U.S. Constitution. The decision is noteworthy because prior U.S. Supreme Court decisions suggested that student and community groups had relatively broad rights to conduct religious activities in school facilities, at least where the school “opened the door” to similarly-situated non-religious groups. The decision is fairly narrow, though, and the reality is that even after the case, most religious activities by student and community groups will be permissible once a forum is “opened” to outside groups. The case does provide strong support for a decision by a school district with legitimate concerns about community perceptions of “religious services” on school grounds to prohibit such services, however, and so is worth a closer look.

The Court’s Decision

In Bronx Household of Faith v. Board of Education of the City of New York, the Board of Education made New York City’s school facilities available outside of school hours for use by community groups and organizations. The school district “subsidized” the facility use in that it did not charge a fee for such use. The Board was concerned that allowing groups and organizations to hold religious worship services under those circumstances would create the perception that the City was improperly supporting or endorsing religion. Accordingly, the Board prohibited use of the facilities for “religious worship services.”

A religious group sued, arguing that the prohibition violated the First Amendment’s protections of free speech and free exercise of religion by limiting their ability to engage in their religious speech or expression. The group also argued that the rule created an impermissible entanglement with religion in violation of the Establishment Clause, because school leaders would have to determine what was or was not “religious worship services.” The Second Circuit, which is the federal appeals court with jurisdiction over Connecticut, New York, and Vermont, previously addressed and rejected the free speech claim in an earlier appeal. In this case, the court focused on the Free Exercise and Establishment Clause issues.

The Second Circuit held that the Board’s prohibition did not violate the Free Exercise Clause or Establishment Clauses. The court found that the prohibition was content-based and applied equally to all entities conducting religious services without consideration of an entity’s religious viewpoint, and so did not violate the Free Exercise Clause. The court was persuaded by the following facts in finding no violation:

The fact that the Board’s policy treats all users, whether religious or secular, the same;

The fact that there was no evidence that the Board had an animus against religion generally or any religion that conducted worship services specifically;

The fact that the Board had a bona fide and reasonable concern that allowing the free use of school facilities for religious worship would create a substantial risk of a claim that the Board was improperly supporting or endorsing religion in violation of the Establishment Clause; and

The fact that the Board’s policy did not prohibit all religious worship by groups in any location, but instead left groups free to conduct worship services wherever they choose other than the Board’s schools.

For many of the same reasons, the court found no violation of the Establishment Clause.

Insights for Educators

Although the Bronx Household decision is not binding law outside of the Second Circuit, it provides persuasive authority to school leaders who wish to avoid the appearance of improper entanglement with religion by prohibiting religious services on school grounds. Based on the facts of the case, such prohibitions will be strongest where coupled with a bona fide and reasonable fear that there will be a concern about impermissible entanglement with religion if religious services are allowed. Such a concern may be reasonable if, for instance, the facilities are provided for free or other resources are provided by the school to facilities users. If there is a history of animus by school leaders against religion generally or a particular group that conducts religious services, such prohibition will be at greater risk of constitutional challenge.

The decision does not alter the robust rights of student and community groups to use school property for other religious purposes when such property is generally made available for non-religious uses. For instance, it is unquestionable that a student group or outside group or organization can hold meetings involving singing religious songs, reading bible lessons, and memorizing scripture in a public school where school policy allows similarly-situated non-religious groups, such as social, civic, and recreational groups, to do so, as long as those groups comply with relevant school district policies and procedures and relevant laws.

The Bronx Household case is a good reminder of how nuanced and frequently changing this area of law is. School leaders are advised to work closely with legal counsel whenever questions arise about the rights of access religious groups may have to public school facilities so as to avoid a First Amendment constitutional challenge.

The big news in education technology this week is Yik Yak, a free, anonymous social networking application that allows users to post comments that can be seen by others within a 5- to 10-mile radius. The app was intended for use by college students and is described as a localized Twitter for campus communities. But the anonymity of the app allows users to bully others without any risk of identification, and has led to reports of severe bullying in schools across the country. As the Chicago Tribunereported, Yik Yak disabled its app within the Chicago area after at least four schools had to address bullying concerns on the app with their students and parents.

One comment that has repeatedly been made about the recent Yik Yak scandal is that it shows how quickly social media moves and how difficult it is for school administrators to address new issues when they arise. For instance, the Yik Yak app only became popular within the last few months and so was not banned in many schools prior to these recent incidents. And even if banned and blocked through a school’s internet filters, if a school district allows students to access data plans on personal technology devices at school they still can access the app despite the filters and without school officials knowing.

The question arises, then: What can school leaders do to put themselves in the best position to deal with novel social media and technology issues when they arise? Here are a few ideas:

In student handbooks or other informal guidelines, consider specifically banning student use of any social media program or other technology on school grounds or at school-related events and activities for the purpose of bullying other students. Also consider banning such use anywhere if it causes or reasonably could be foreseen to cause a material and substantial disruption to the school environment or invasion of rights of others in the school community. This way, discipline of perpetrators will be allowed even if a new program or technology used for bullying (such as Yik Yak) is not specifically prohibited and, if it is serious enough, even if it occurs off grounds.

Also consider banning student use of data plans on personal technology devices at school. This will limit the circumstances when students can avoid a filter or other screening technology when implemented. It also allows school leaders to monitor student use of websites and technology through the Internet system, which is not possible when a student uses their own data plan.

Educate students, parents, and other members of the school community about the harms that arise from bullying before an incident occurs. Such education should be broad enough to cover types of behavior that are now known or that may occur in the future. Your legal counsel is a good resource for training that meets these needs.

Ensure that technology policies and procedures are up-to-date and broad enough to put the school district in the best position to address novel misconduct by students, staff, and other members of the school district community when it occurs. For school districts in Illinois, Franczek Radelet has a recenttechnology policy package created for that purpose.

Thanksgiving is not yet here, but school districts across the country already are grappling with an important question regarding later, religious holidays like Christmas. The question: Can religious content be included in winter programming in public schools?

The inclusion of religion-themed content in musical programs and charity drives has been a hot button issue for schools this year. For example, a New Jersey school district recently came under fire for banning all Christian music from its elementary schools’ winter concerts. After pressure from a pro-religion organization, Alliance Defending Freedom, the school district reversed course and said it would allow Christmas songs in the concerts, after all. Similarly, a Colorado school district reportedly broke ties with a Christian organization that collects boxes of toys from students to send to impoverished children overseas. A secular-rights group, the American Humanist Association, fueled the change in policy by challenging the practice through a letter to the school district.

The organizations that either support or challenge the inclusion of religious content in school programming often portray the issue as simple. For instance, the Alliance Defending Freedom recently sent a letter to 13,000 school districts across the country suggesting that the right to include religious content in school musical programs and toy drives is nearly absolute. But as with most constitutional issues in public schools, the reality is that decisions must be made on a case-by-case basis with critical attention to the rights on both sides.

In an earlier blog post, we addressed whether an Ohio school district violated the First Amendment by hanging a portrait of Jesus in a middle school. The portrait allegedly was a gift to the school board by a Christian student club and had been hanging in the school district’s schools since the 1940s. In February, the school board voted to allow the picture to remain despite a lawsuit filed by the ACLU and the Wisconsin-based Freedom from Religion Foundation (FFRF). The school board said that the portrait is not owned by the school but rather belongs to a Christian student club, and that removing it might violate the First Amendment rights of the students in the club.

The parties reportedly reached a tentative agreement months ago when, in April, the school board took the picture down. The legal fight was rekindled, however, when the ACLU and FFRF learned that the school district continued to keep the portrait in its high school building in an area visible to those entering an art-storage area, and displayed the picture on a school lawn during a prayer meeting. After a flurry of more legal filings, the school district decided to settle, agreeing to remove the picture from its school buildings, to pay each of the anonymous students who brought the complaint $3,000, and to pay the ACLU and FFRF $80,000.

As we pointed out in our earlier blog post, there are a number of key takeaways that school leaders can glean from this case.

Courts are generally skeptical of religious displays, including religious works of art, that appear to be school-sponsored speech unless there is a clear secular purpose behind the display. A secular purpose might include a display including art work from a number of religions or examples of historical figures. A court also may be concerned if only one religion, such as Christianity, is represented. When the religious speech purportedly is that of a student or students, the issue becomes more difficult. Whether it is a posting by a student group, a student submission to a class or contest that includes religious content, student speech with religious undertones at a talent show or a graduation or other assembly, or the reading of prayers by students at a football game, there are a myriad of legal rules and challenges of which school leaders should be aware. The Ohio settlement makes clear that balancing these rules and challenges can be difficult, and sometimes costly.

This month, two courts issued dramatically different opinions about whether school districts can prohibit breast cancer awareness bracelets reading “I ♥ boobies” without running afoul of students’ First Amendment free speech rights. In both cases, the school districts argued that they could prohibit the speech in the school context based on the 1986 Supreme Court caseBethel School District v. Fraser. In Fraser, the Court upheld the suspension of a high school student for making a speech full of sexual innuendos during a school assembly. The Fraser Court held that the discipline did not violate the student’s First Amendment rights, and that opinion has been interpreted to authorize school discipline of lewd, vulgar, obscene, indecent, or patently offensive speech in the school environment. (more…)

A portrait of Jesus Christ that has been hanging in an Ohio public middle school since the 1940s is once again garnering national headlines. The school district reportedly moved the portrait earlier this week from the middle school to a local high school.

A lawsuit filed early this year against the school district by three anonymous students alleges that the portrait of Jesus was a gift to the school by a Christian student club and is therefore the school’s speech. Because it is religious in nature and there is no secular purpose for hanging the picture, the lawsuit argues that hanging it in the school violates the First Amendment’s prohibition against establishment of religion. In February, the school board voted to allow the picture to remain despite the lawsuit, saying that the portrait is not owned by the school but rather belongs to a Christian student club. The recent move of the portrait to a new school purportedly was a decision of the student club, not the school. The school suggested that removing the portrait would violate the First Amendment rights of the students in the Christian club. Which side is right?

There is not an easy answer, as is often the case with religious school speech questions. A first important consideration will be the context in which the portrait is hung. As the ACLU’s initial letter to the Ohio school district explained, courts are generally skeptical of religious displays, including religious works of art, that appear to be government sponsored unless there is a clear secular purpose behind the display. Examples of secular displays might include a display that includes art work from a number of different religions in an effort to teach students about the impact of religion on art or a display in which students are allowed to hang photographs of their choice and a student submits a religious photograph for the display. In contrast, courts have held particular works of art to violate the Establishment Clause where they are relatively isolated from other government-sponsored displays. The ACLU’s letter alleged that the Jesus portrait at issue here was not in a larger display of “world-renowned historical or religious figures,” and rather was hung in the middle school near portraits of alumni of the school. If those facts are true, and if the move to the high school did not remedy the problem, a court would be much more likely to find the portrait to be unconstitutional.

Earlier this month, a New Jersey appellate court affirmed the dismissal of a tenured teacher for comments she made about her students on Facebook. Good summaries of the case, In re O’Brien, can be found throughthe National School Boards Association and Education Week(subscriber access only). But the case warrants a closer look for school leaders and employees who wish to better understand First Amendment protections of school-employee speech on the internet. Although the school district was allowed to dismiss the teacher in this situation, where she criticized her young students in an inflammatory way, there is a blurry line between protected and unprotected employee online speech that administrators must be careful to understand. Below are a summary of the facts in the case, the relevant legal standard and its application to O’Brien’s situation, and some lessons that school administrators and employees can learn from the ruling.

The Facts

In 2010-2011, Jennifer O’Brien was a veteran teacher with over a decade of experience in the Paterson, New Jersey public schools. At the start of the 2010-2011 school year, Paterson unexpectedly was assigned to teach first grade at a new school that was predominately comprised of minority students, including African-Americans and Latinos. All of the students in her class, in fact, were either Latino or African-American.

O’Brien began to believe that six or seven of the students in her class had behavioral problems, which were having an adverse impact on her classroom environment. One student struck her, another stole money from her and other students, and some students hit each other.

O’Brien responded to these issues by sending disciplinary referrals to the school administrators on several occasions, but she thought the referrals had not been addressed adequately. O’Brien then posted two posts on her Facebook page relating to the issues:

“I’m not a teacher—I’m a warden for future criminals!”

“They had a scared straight program in school—why couldn’t [I] bring [first] graders?”

O’Brien said she posted the statement that her students were “future criminals” because of the behavior of some – but not all – of the students, not because of their race or ethnicity. News of her posts spread quickly throughout the school district, however. Two angry parents went to her principal’s office to express their outrage, and one parent threatened to remove her child from school. The school also received at least a dozen irate phone calls. Twenty to 25 people gathered outside the school to protest because of the statements, and news reporters and camera crews from major news organizations descended upon the school. At the next Home-School Council meeting, the majority of the meeting was devoted to O’Brien’s posts and parents expressed their outrage over the posts. When O’Brien was made aware of the outrage against her posts, she was surprised that her posts had led to such a reaction. (more…)